[Nettime-bold] Re: <nettime> Arundhati Roy sent to prison today

[Harsh Kapoor <aiindex@mnet.fr>]

Dan:

Two affidavits were filed by Arundhati Roy in response to the court 
notice. I am posting below the full text both of these
Harsh Kapoor
(South Asia Citizens Web)

===

#1.

[The affidavit filed in  April 2001 ]

IN THE SUPREME COURT OF INDIA
CONTEMPT PETITION (CR) NO. 2/2001

IN THE MATTER OF:

J.R. PARASHAR AND ORS.
PETITIONERS

VERSUS

PRASHANT BHUSHAN AND ORS.
RESONDENTS


AFFIDAVIT IN REPLY ON BEHALF OF RESPONDENT NO. 3

I, Arundhati Roy, daughter of Mary Roy, resident of 2A Kautilya Marg, 
New Delhi 110021, do solemnly state and affirm as under. I have 
received the showcause notice issued by the Supreme Court and I have 
read and understood the contents of the contempt petition in which 
this notice has been issued.

My reply is as under: The gravamen of the charges in the petition 
against me are contained in the FIR that the petitioners say they 
lodged in the Tilak Marg police station on the 14th of December 2000.

The FIR is annexed to the main petition and is reproduced verbatim below.

First Information Report dated 14.12.2000

I, Jagdish Prasar, with colleagues Shri Umed Singh and Rajender were 
going out from Supreme Court at 7.00 pm and saw that Gate No. C was 
closed.

We came out from the Supreme Court premises from other path and 
inquired why the gate is close. The were surrounded by Prasant 
Bhusan, Medha Patekar and Arundhanti Roy alongwith their companion 
and they told Supreme Court your father's property. On this we told 
them they could not sit on Dharna by closing the gate. The proper 
place of Dharna is parliament. In the mean time Prastant Bhusan 
said."You Jagdish Prasar are the tout of judiciary. Again medha said 
"SALE KO JAAN SE MAAR DO (kill him). Arundhanti Roy commanded the 
crow that Supreme Court of India is the thief and all these are this 
touts. Kill them, Prasant Bhushan pulled by having caught my haired 
and said that if you would be seen in the Supreme Court again he 
would get them killed. But they were shouting inspite of the presence 
of S.H.O and ACP Bhaskar Tilak marg. We ran away with great with 
great hardship otherwise their goonda might have done some mischief 
because of their drunken state. Therefore, it is requested to you 
that proper action may be taken after registering our complaint in 
order to save on lives and property. We complainants will be highly 
obliged.

Sd. Complainants


The main petition is as shoddily drafted as the FIR. The lies, the 
looseness, the ludicrousness of the charges displays more contempt 
for the Apex Court than any of the offences allegedly

committed by Prashant Bhushan, Medha Patkar and myself. Its contents 
are patently false and malicious. The police station in Tilak Marg, 
where the FIR was lodged, has not registered a case. No policeman 
ever contacted me, there was no police investigation, no attempt to 
verify the charges, to find out whether the people named in the 
petition were present at the dharna, and whether indeed the incident 
described in the FIR (on which the entire contempt petition is based) 
occurred at all.


Under the circumstances, it is distressing that the Supreme Court has 
thought it fit to entertain this petition and issue notice directing 
me and the other respondents to appear personally in court on the 
23rd of April 2001, and to "continue to attend the Court on all the 
days thereafter to which the case against you stands and until final 
orders are passed on the charges against you. WHEREIN FAIL NOT."

For the ordinary working citizen, these enforced court appearances 
mean that in effect, the punishment for the uncommitted crime has 
already begun.

The facts relating to the petition are as follows:

Contrary to everything the petition says, insinuates and implies, I 
am not a leader of the Narmada Bachao Andolan.I am a writer, an 
independent citizen with independent views who supports and admires 
the cause of the Andolan. I was not a petitioner in the Public 
Interest Litigation petition in the case of the Sardar Sarovar 
Project. I am not an 'interested party'. Prashant Bhushan is not my 
lawyer and has never represented me.

Furthermore in all humility I aver that I do not know who the 
petitioners are. That I never tried to murder anybody, or incite 
anybody to murder anybody, in broad daylight outside the gates of the 
Supreme Court in full view of the Delhi police.

That I did not raise any slogans against the court. That I did not 
see Prashant Bhushan pulled anyone by having caught their haired and 
said that if you would be seen in the Supreme Court again he would 
get them killed. That I did not see Medha Patkar, leader of India's 
most prominent non-violent resistance movement, metamorphose into a 
mediocre film actor and say "Sale ko jaan se maar do" (Kill the 
bastard). That I did not notice the presence of any "goondas" in a 
"drunken state". And finally, that my name is spelt wrong.

On the morning of the 13th of December 2000, I learned that people 
from the Narmada Valley had gathered outside the gates of the Supreme 
Court. When I arrived at the Supreme Court at about 11.30 am, gate 
No. C was already closed. Four to five hundred people were standing 
outside. Most of them were adivasi people who, as a consequence of 
the recent Supreme Court judgement that allowed the construction of 
the Sardar Sarovar dam to proceed, will lose their lands and homes 
this monsoon to the rising waters of the reservoir. They have not 
been rehabilitated. In a few months they will be destitute and have 
nowhere to go. These people had travelled all the way from the 
Narmada Valley to personally convey their despair and anguish to the 
court. To tell the court that in contravention of its order, no land 
has been offered to them for rehabilitation and that the reality of 
the situation in the Narmada Valley is very different from the one 
portrayed in the Supreme Court Judgement. They asked the Registrar of 
the Court for a meeting with the Chief Justice.

A number of representatives of peoples' movements in Delhi, and other 
supporters of the Andolan like myself, were also there to express 
their solidarity. I would like to stress that I did not see Prashant 
Bhushan, the main accused in the petition, at the dharna. Medha 
Patkar, who was there, asked me to speak to the people for five 
minutes.

My exact words were: "Mujhe paanch minute bhi nahi chahiye aapke 
saamne apni baat rakhne ke liye. Mein aapke saath hoon." (I do not 
even need five minutes to tell you why I'm here. I'm here because I 
support you.) This is easy to verify as there were several film and 
television crews shooting the event. The villagers had cloth labels 
hung around their necks that said "Project Affected at 90 metres" 
(the current height of the dam). As time went by and it became clear 
that the request for a meeting with the Chief Justice was not going 
to be granted, people grew disheartened. Several people (who I don't 
know or recognise) made speeches critical of the Court, its 
inaccessibility to common people, and its process. Others spoke about 
corruption in the judiciary, about the judges and how far removed 
they are from ground realities. I admit that I made absolutely no 
attempt to intervene. I am not a policeman or a public official. As a 
writer I am deeply interested in peoples' perceptions of the 
functioning of one of the most important institutions in this country.

However, I would like to clarify that I have never, either in my 
writing, or in any public forum cast aspersions on the character or 
integrity of the judges. I believe that the reflexive instinct of the 
powerful to protect the powerful is sufficient explanation for the 
kind of iniquitous judgement as in the case of the Sardar Sarovar 
Project. I did not raise slogans against the court. I did not, as the 
petition claims, say "Supreme Court bika hua hai" (The Supreme Court 
has sold out). I certainly did not "command the crow that Supreme 
Court of India is the thief and all these are this touts." (Perhaps 
the petitioners meant 'crowd'?)

I went to the dharna because I have been deeply distressed and 
angered by the Supreme Court's majority-and therefore 
operative-verdict on the Sardar Sarovar Project. The verdict allowed 
the project to proceed even though the court was well aware that the 
Narmada Water Disputes Tribunal had been consistently violated for 
thirteen years. That not a single village had been resettled 
according to the directives of the tribunal, and that the Madhya 
Pradesh Government (which is responsible for 80 per cent of the 
oustees) had given a written affidavit in court stating that it has 
no land to resettle them. In effect, the Supreme Court ordered the 
violation of the fundamental rights to life and livelihood of 
hundreds of thousands of Indian citizens, most of them Dalit and 
Adivasi.

As a consequence of the Supreme Court judgement, it is these 
unfortunate citizens who stand to lose their homes, their 
livelihoods, their gods and their histories. When they came calling 
on the Supreme Court on the morning of the 13th of December 2000, 
they were asking the Court to restore their dignity. To accuse them 
of lowering the dignity of the Court suggests that the dignity of the 
court and the dignity of Indian citizens are incompatible, 
oppositional, adversarial things. That the dignity of one can only 
exist at the cost of the other. If this is so, it is a sad and 
shameful proposition. In his Republic Day speech, President K.R. 
Narayanan called upon the nation, and specifically the judiciary, to 
take special care of these fragile communities. He said, "The 
developmental path we have adopted is hurting them, the marginalised, 
the Scheduled Castes and Scheduled Tribes, and threatening their very 
existence."

I believe that the people of the Narmada Valley have the 
constitutional right to protest peacefully against what they consider 
an unjust and unfair judgement. As for myself, I have every right to 
participate in any peaceful protest meeting that I choose to. Even 
outside the gates of the Supreme Court. As a writer I am fully 
entitled to put forward my views, my reasons and arguments for why I 
believe that the judgement in the Sardar Sarovar case is flawed and 
unjust and violates the human rights of Indian citizens. I have the 
right to use all my skills and abilities such as they are, and all 
the facts and figures at my disposal, to persuade people to my point 
of view.

The petition is a pathetic attempt to target what the petitioners 
perceive to be the three main fronts of the resistance movement in 
the Narmada Valley. The activist Medha Patkar, leader of the Narmada 
Bachao Andolan and representative of the people in the valley; the 
lawyer, Prashant Bhushan, legal counsel for the Narmada Bachao 
Andolan; and the writer (me), who is seen as one of those who carries 
the voice of the Andolan to the world outside.It is significant that 
this is the third time that I, as a writer, have had to face legal 
harassment connected with my writing.

In July 1999, the three-judge bench in the Supreme Court hearing the 
public interest petition on the Sardar Sarovar Project took offence 
at my essay The Greater Common Good published in Outlook and 
Frontline magazines. While the waters rose in the Narmada, while 
villagers stood in their homes in chest-deep water for days on end, 
protesting the Court's interim order, the Supreme Court held three 
hearings in which the main topic they discussed was whether or not 
the dignity of the Court had been violated by my essay. On the 15th 
of October 1999, without giving me an opportunity to be heard, the 
Court passed an insulting order. Here is an extract:

"...Judicial process and institution cannot be permitted to be 
scandalised or subjected to contumacious violation in such a blatant 
manner in which it has been done by her...vicious stultification and 
vulgar debunking cannot be permitted to pollute the stream of 
justice...we are unhappy at the way in which the leaders of nba and 
Ms Arundhati Roy have attempted to undermine the dignity of the 
Court. We expected better behaviour from them..."

The order contained a veiled warning to me not to continue with my 
"objectionable writings".

In 1997 a criminal case for Corrupting Public Morality was filed 
against me in a district magistrate's court in Kerala for my book The 
God of Small Things. It has been pending for the last four years. I 
have had to hire criminal lawyers, draft affidavits and travel all 
the way to Kerala to appear in court.

And now I have to defend myself on this third, ludicrous charge.

As a writer I wish to state as emphatically as I can that this is a 
dangerous trend. If the Court uses the Contempt of Court law, and 
allows citizens to abuse its process to intimidate and harass 
writers, it will have the chilling effect of interfering with a 
writer's imagination and the creative act itself. This fear of 
harassment will create a situation in which even before a writer puts 
pen to paper, she will have to anticipate what the Court might think 
of her work. It will induce a sort of enforced, fearful 
self-censorship. It would be bad for law, worse for literature and 
sad for the world of art and beauty.

I have written and published several essays and articles on the 
Narmada issue and the Supreme Court judgement. None of them was 
intended to show contempt to the Court. However, I have every right 
to disagree with the Court's views on the subject and to express my 
disagreement in any publication or forum that I choose to. Regardless 
of everything the operative Supreme Court judgement on the Sardar 
Sarovar says, I continue to be opposed to Big Dams. I continue to 
believe that they are economically unviable, ecologically destructive 
and deeply undemocratic. I continue to believe that the judgement 
disregarded the evidence placed before the Court. I continue to write 
what I believe. Not to do so would undermine the dignity of writers, 
their art, their very purpose. I need hardly add that I also believe 
that those who hold the opposite point of view to mine, those who 
wish to disagree with my views, criticise them or denounce them, have 
the same rights to free speech and expression as I do.

I left the dharna at about 6 pm. Until then, contrary to the lurid 
scenario described in the petitioners' FIR, I can state on oath that 
no blood was spilled, no mob was drunk, no hair was pulled, no murder 
attempted.A little khichdi was cooked and consumed. No litter was 
left. There were over a hundred police constables and some senior 
police officers present. Though I would very much like to, I cannot 
say in good conscience that I have never set eyes on the petitioners 
because I don't know who they are or what they look like. They could 
have been any one of the hundreds of people who were milling around 
on that day.

But whoever they are, and whatever their motives, for the petitioners 
to attempt to misuse the Contempt of Court Act and the good offices 
of the Supreme Court to stifle criticism and stamp out dissent 
strikes at the very roots of the notion of democracy.

In recent months this Court has issued judgements on several major 
public issues. For instance, the closure of polluting industries in 
Delhi, the conversion of public transport buses from diesel to cng, 
and the judgement permitting the construction of the Sardar Sarovar 
Dam to proceed. All of these have had far-reaching and often 
unanticipated impacts. They have materially affected, for better or 
for worse, the lives and livelihoods of millions of Indian citizens. 
Whatever the justice or injustice of these judgements, whatever their 
finer legal points, for the Court to become intolerant of criticism 
or expressions of dissent would mark the beginning of the end of 
democracy.

An 'activist' judiciary, that intervenes in public matters to provide 
a corrective to a corrupt, dysfunctional executive, surely has to be 
more, not less accountable. To a society that is already convulsed by 
political bankruptcy, economic distress and religious and cultural 
intolerance, any form of judicial intolerance will come as a 
crippling blow. If the judiciary removes itself from public scrutiny 
and accountability, and severs its links with the society that it was 
set up to serve in the first place, it would mean that yet another 
pillar of Indian democracy will crumble. A judicial dictatorship is 
as fearsome a prospect as a military dictatorship or any other form 
of totalitarian rule.

The Tehelka tapes broadcast recently on a national television network 
show the repulsive sight of Presidents of the Bharatiya Janata Party 
and the Samata Party (both part of the ruling coalition) accepting 
bribes from spurious arms dealers. Though this ought to have been 
considered prima facie evidence of corruption, the Delhi High Court 
declined to entertain a petition seeking an inquiry into the defence 
deals that were referred to in the tapes. The bench took strong 
exception to the petitioner approaching the court without substantial 
evidence and even warned the petitioner's counsel that if he failed 
to substantiate its allegations, the court would impose costs on the 
petitioner.

On the grounds that judges of the Supreme Court were too busy, the 
Chief Justice of India refused to allow a sitting judge to head the 
judicial inquiry into the Tehelka scandal, even though it involves 
matters of national security and corruption in the highest places.

Yet, when it comes to an absurd, despicable, entirely unsubstantiated 
petition in which all the three respondents happen to be people who 
have publicly-though in markedly different ways-questioned the 
policies of the government and severely criticised a recent judgement 
of the Supreme Court, the Court displays a disturbing willingness to 
issue notice.

It indicates a disquieting inclination on the part of the Court to 
silence criticism and muzzle dissent, to harass and intimidate those 
who disagree with it.By entertaining a petition based on an FIR that 
even a local police station does not see fit to act upon, the Supreme 
Court is doing its own reputation and credibility considerable harm.

In conclusion, I wish to reaffirm that as a writer I have the right 
to state my opinions and beliefs. As a free citizen of India I have 
the right to be part of any peaceful dharna, demonstration or protest 
march. I have the right to criticise any judgement of any court that 
I believe to be unjust. I have the right to make common cause with 
those I agree with. I hope that each time I exercise these rights I 
will not dragged to court on false charges and forced to explain my 
actions.

The petitioners have committed civil and criminal defamation. They 
ought to be investigated and prosecuted for perjury. They ought to be 
made to pay damages for the time they have wasted of this Apex Court 
by filing these false charges. Above all they ought to be made to 
apologise to all those citizens who are patiently awaiting the 
attention of the Supreme Court in more important matters.
Deponent
------------------------------------------------------------------------

Verification:

I the deponent abovenamed do hereby verify that the contents of the 
above affidavit are true to best of my knowledge and belief and 
nothing material has been concealed therefrom.

Verified at New Delhi on this, the 16th day of April 2001.

o o o

#2.

[The Last Affidavit dated October 15, 2001]

IN THE SUPREME COURT OF INDIA
ORIGINAL JURISDICTION
In the matter of
CONTEMPT PETITION (CRL) NO. 10 OF 2001

(Suo motu Contempt Proceedings under Rule 3(a) of the Rules to 
regulate proceedings for Contempt of the Supreme Court 1975 initiated 
on the basis of Affidavit dated 16.4.2001 filed on 17.4.2001 in 
Contempt Petition (Crl) No.  2/2001 titled J.R. Parashar and Others 
Versus Prasant Bhushan and Others.)

Affidavit in Response of the respondent/noticee

I, Arundhati Roy, daughter of Mary Roy, resident of 2A Kautilya Marg, 
New Delhi 110021, do hereby state and affirm as follows: That I have 
read and understood the contents of the Contempt Notice issued to me 
dated 5th September 2001 and my reply to it is as under:

1.   The Contempt Notice alleges that three paragraphs in my 
Affidavit dated 16.4.2001 are grossly contemptuous, that they 
attribute improper motives to the Court and therefore amount to 
Criminal Contempt of the Court as defined under Section 2(c) of the 
Contempt of Court Act read with Article 129 of the Constitution of 
India. In this particular instance I understand "Criminal Contempt of 
the Court" to mean "the publication of any matter or the doing of any 
other act whatsoever which scandalizes or tends to scandalize or 
lowers or tends to lower the authority of, any court."

The allegedly offending paragraphs from my affidavit are reproduced below:

"On the grounds that judges of the Supreme Court were too busy, the 
Chief Justice of India refused to allow a sitting judge to head the 
judicial enquiry into the Tehelka scandal, even though it involves 
matters of national security and corruption in the highest places.

Yet, when it comes to an absurd, despicable, entirely unsubstantiated 
petition in which all the three respondents happen to be people who 
have publicly - though in markedly different ways - questioned the 
policies of the government and severely criticized a recent judgement 
of the Supreme Court, the Court displays a disturbing willingness to 
issue notice.

It indicates a disquieting inclination on the part of the court to 
silence criticism and muzzle dissent, to harass and intimidate those 
who disagree with it. By entertaining a petition based on an FIR that 
even a local police station does not see fit to act upon, the Supreme 
Court is doing its own reputation and credibility considerable harm."

2.   I submit that there has been a misreading and complete 
misunderstanding of my affidavit in general and of the above three 
paragraphs in particular. I have not attributed any improper motive 
to any particular judge. I have not said anything that scandalizes or 
tends to scandalize or lowers or tends to lower the authority of the 
Court. I have not asserted as a fact that the Court wishes to muzzle 
dissent. I have said that by admitting a flawed petition against 
three people who had recently and publiclycriticised the Supreme 
Court judgement in the Sardar Sarovar case, the Court creates this 
impression. Therefore, I said, by its own action, the Court is 
harming its credibility and reputation. In a democracy, it is a 
citizen's duty to point this out.

3.   If Supreme Court judges are too busy to be spared to head a 
judicial enquiry into a matter concerning national security and 
corruption in the highest places, it is fair and valid to assume that 
they are busy with matters of equal, if not greater importance.

4.   It is for this reason that I was distressed that an already 
overburdened Court had time to entertain an obviously false and 
flawed petition such as the one filed by J.R Parashar and others (Crl 
No.  2/2001 titled J.R. Parashar and Others Versus Prasant Bhushan 
and Others). In our affidavits in reply, Medha Patkar, Prashant 
Bhushan, as well as I myself pointed out the reasons why, in our 
opinion, the petition was false, contained multiple flaws, was a 
deliberate attempt to mislead the Court and did not have the approval 
of the Attorney General which is mandatory in a Contempt of Court 
case.

5.      Subsequently the Court itself in its order dated August 28th 
2001, while dismissing the petition, said that it violated "almost 
every one of the Rules framed by this Court" and was "shabbily 
drafted, procedurally grossly defective." 

6.   The order also says "Apart from the defective nature of the 
petition, the unexplained reluctance on the part of the four 
petitioners to affirm an affidavit verifying the facts contained in 
the petition, the failure to even attempt to obtain the consent of 
the Solicitor General and most importantly the refusal of the police 
station to record an FIR on the basis of the complaint lodged by the 
petitioner No.1 are telling circumstances against the case in the 
petition. Admittedly, the police personnel were present at the time 
of the incident. Their refusal to record the FIR on the petition's 
complaint is, therefore, significant."  

7.            Addressing the issue of why such a petition was 
admitted by the Court in the first place, the order says: "When a 
matter is listed before the Court, the Court assumes that the 
formalities in connection with the filing have been scrutinized by 
the Registry of this Court that the proper procedure has been 
followed as it is the duty of the Registry to scrutinise the petition 
to see whether it is in order before placing it before the Court for 
consideration. There is no occasion for this Court to assume the task 
of the Registry before considering the merits of each matter. Had our 
attention been drawn to the procedural defects, we would have had no 
hesitation in rejecting the application in limine on this ground 
alone." (Emphasis added.) The Court appears to be as - if not more - 
outraged than the Respondents at the nature of the petition and the 
grossly defective procedure by which it came to be admitted to the 
highest court in the land.

8.   As an ordinary citizen, I cannot and could not have been 
expected to make a distinction between the Registry and the Court. In 
my eyes, the Court is responsible for the functioning of its 
Registry. Together they decide the prioritization of judicial 
resources, together they decide which petitions are admitted and 
which are not. For a common citizen, the Registry of the Supreme 
Court is the threshold to Justice itself. If citizens cannot have 
faith in the proper functioning of the Registry, it is bound to 
undermine their faith in the Court itself. Given the circumstances, 
it seems perfectly justifiable for someone in my position to wonder 
why such an obviously defective petition had been admitted by the 
Court. It seemed perfectly appropriate to air my view that in this 
particular instance, the Court, by allowing certain citizens to 
grossly abuse its process in this way, creates the disturbing 
impression that there is an inclination on the part of the Court to 
silence criticism and muzzle dissent. This does not, and was not 
meant to impute motives to any particular judges. It does not, nor 
was it meant to undermine the dignity of the Court. I was simply 
stating the honest impression that had formed in my mind.

9.      Issuing a Criminal Contempt Notice may be a routine, everyday 
matter for the Court. However, for an ordinary citizen who receives 
one, it involves considerable travail and humiliation. To begin with, 
one has to engage lawyers and spend a great deal of time briefing 
them, and drafting affidavits. Hiring lawyers also involves a major 
expense. For a working person, being asked to schedule one's entire 
life around enforced court appearances, as though one is a common 
criminal, is humiliating and damaging to one's professional life. It 
is therefore incumbent on the Court to see that a petition on the 
basis of which Notice is issued, passes at least a minimum 
credibility test.

10.       Other than the facts pertaining to the petition ( Crl No. 
2/2001 titled J.R. Parashar and Others Versus Prasant Bhushan and 
Others), the manner in which it was admitted, and the   travails that 
receiving a Contempt Notice from the Supreme Court of India entails, 
there were some other salient facts present in my mind when I filed 
my affidavit dated 16.4.2001 which will also explain the reasons for 
writing what I did.

11.       In May 1999, my essay titled "The Greater Common Good" was 
published in Outlook and Frontline magazines. On 15th October 1999, 
the Supreme Court made the following remarks against me:

"Judicial process and institution cannot be permitted to be 
scandalized or subjected to contumacious violation in such a blatant 
manner in which it has been done by her. ŠŠ Vicious stultification 
and vulgar debunking cannot be permitted to pollute the stream of 
justice. Š We are unhappy at the way in which the leaders of the NBA 
and Ms Arundhati Roy have attempted to undermine the dignity of the 
court. We expected better behaviour from them."

The order also said "Whatever may be the motive of Ms Arundhati Roy, 
it is quite obvious that she decided to use her literary fame by 
misinforming the public and projecting in a totally incorrect manner 
how the proceeding relating to Resettlement and Rehabilitation had 
shaped in the Court.Š"

12.       I was not a party to the case on the Sardar Sarovar 
Project. The order was passed without giving me an opportunity to be 
heard and was therefore in violation of the Principles of Natural 
Justice.

13.       It is certainly true that I had (and continue to have) a 
different opinion from that contained in the majority - and therefore 
operative - Judgement on the Sardar Sarovar issue. But so do millions 
of people in the world, as did one of the Judges on that particular 
bench who wrote an admirable, dissenting judgement. "Vulgar 
debunking" and "vicious stultification" are strong words indeed to 
describe a difference of opinion.

14.       The Greater Common Good has been published and reprinted in 
several countries and several languages across the world. Each fact 
and figure has been backed up with notes and references and maps. So 
far no one has pointed out a single factual error in the essay, nor 
have I been made aware of any instance of deliberate 
'misinformation'. It was unjustified on the part of the court to 
suggest that I deliberately 'decided' to use my 'literary fame' to 
misinform the public. A baseless comment like this does not behove 
the august offices of the Apex Court.

15.       This incident contributed in no small measure to the 
impression that I stated in my affidavit.

16.  A person can perhaps be forced under duress to withdraw a 
statement, or apologize for stating an opinion. However, a person 
cannot be coerced into changing his or her mind. That can only happen 
through persuasion. The impression I had of the Court's actions in 
this case would have been corrected, and in fact, completely 
dispelled had the Court  done all or any of the following things:
a.	Dismissed the petition at the initial stage, without issuing notice.
b.	Ordered an enquiry into the functioning of the Registry to 
establish how such a 'procedural lapse' could have taken place.
c.	Taken action against the Petitioners for filing a false case 
and deliberately attempting to mislead the Court.


17.    Sadly, the events that occurred subsequent to the filing of my 
affidavit have done nothing to dispel an already unfortunate 
impression that has been created. The events are:
a.	At each hearing, the presence of a large police force ensured 
that no members of the public were allowed into what is supposed to 
be a public courtroom.

b.   At the hearing on 2nd August 2001, one of the petitioners, Shri 
R.K. Virmani, while attempting to avoid answering a question posed by 
one of the judges, stood up and shouted that he had lost faith in the 
sitting Bench and that he wanted the judges changed. This was a clear 
case of imputing improper motives and committing gross Contempt in 
the face of the Court. No action was taken against him.
c.   Instead, based on a misreading of my affidavit, a Notice for 
Criminal Contempt of Court was issued to me on 5th September 2001.
d.   A Press Report (Frontline September 28th 2001) by V.Venkatesan 
along with editorial inputs from Frontline's editor N.Ram, reveals 
that the Registry had indeed refused to list the petition before the 
Court in view of its multiple flaws. The article says that the 
Attorney General had been approached and that he had declined to deal 
with the matter. It goes on to say that the Petitioners then 
requested the Court to take suo motu action which the Court did not 
do. Finally, and inexplicably, without meeting any of the formal 
requirements, without passing even a minimal test of credibility, the 
petition was admitted and notice was issued directing the Respondents 
to appear in person before the Court.
       If these facts are correct, they raise further questions about 
how this petition came to be admitted to the Supreme Court.

18.  I do not believe that the criticism of the Court or its process 
by an individual, whoever that individual might be, can possibly 
lower the dignity of an institution as powerful and venerable as the 
Supreme Court of India. If the criticism is random and unfounded, it 
will automatically rebound on the reputation and credibility of the 
individual who leveled it. If, on the other hand, the criticism is 
substantial or valid, the Court cannot hope to restore its dignity by 
punishing or silencing the critic. Indeed, doing so will have the 
opposite effect. The dignity, the authority and the reputation of the 
Court depend entirely on the conduct of its judges and the quality of 
their judgements. The standing of an institution whose reputation has 
been built up on the basis of actions and judgements over more than 
half a century cannot be undermined by criticism from an individual.

19.       It has always been accepted that the judgements and actions 
of the courts can be subjected to the most severe and trenchant 
criticism. Any serious jurisprudential analysis of the evolution and 
development of law would necessarily involve an attempt to understand 
why the Court has acted in the manner that it has. Highly respected 
judges and serious academic scholars have always done this kind of 
analysis of the courts. Books like "The Politics of the Judiciary" by 
J.A.G.Griffith are learned attempts to understand how the political 
views of individual judges have altered the course of the 
interpretation of law. Studies like this would necessarily involve an 
attempt to understand and discuss the motivation of judges and how 
this has affected their judgements, and thus, the development of Law. 
If such discussion is prohibited on pain of contempt it will render 
the entire analysis of the judiciary completely sterile.

20. Certain interpretations of Section 2(c) of the Contempt of Court 
Act tend to be inconsistent with the Right to Free Speech. Keeping in 
mind the reasons mentioned in Para 8 above, in case of a conflict 
between the Law of Contempt and the Right to Free Speech, the fair 
and judicious thing for the Court to do would be to err on the side 
of protecting Free Speech.

With reference to the present case, it is submitted that this Court's 
allegation that three paragraphs in my affidavit dated 16.4.2001 
amount to a criminal offense under Section 2 (c) of the Contempt of 
Court Act is an incorrect interpretation of the law. Other 
individuals have made similar if not more trenchant criticisms of the 
functioning of the Court and have not been found guilty of committing 
Contempt of Court: During a speech he gave at a meeting of the Bar 
Council in Hyderabad, Shri P.Shiv Shankar, then Minister of Law, 
Justice and Company Affairs said that because Judges had an 
"unconcealed sympathy for the 'haves'" they interpreted the 
expression "compensation" in the way they did. He went on to say 
"Anti-social elements i.e.: FERA violators, bride-burners and whole 
hordes of reactionaries have found their haven in the Supreme Court." 
A case for Contempt of Court was filed against him. In the order by 
Justices Sabyasachi Mukherjee and S. Ranganathan J.J, dated April 
15th 1988, the Law Minister was absolved of the charge of Contempt of 
Court.

21. Whimsical interpretations of the same Law leave citizens at the 
mercy of individual judges. If the three paragraphs of my affidavit 
dated 16.4.2001 are deemed to be a criminal offense under section 
2(c) of the Contempt of Court Act, it will have the chilling effect 
of gagging the Press and preventing it from reporting on and 
analysing matters that vitally concern the lives of millions of 
Indian citizens. This will be an unfortunate blow to one of the most 
responsible, most robust institutions of Indian democracy.

22. In a democracy, a Free Press is, or ought to be, as cherished an 
institution as a Fair Judiciary. A democracy must have an arena in 
which contending ideas and plural, competing and dissenting opinions 
can be freely voiced. The Free Press is the breathing machine - the 
lungs - of a democracy. There cannot be a democracy without a Free 
Press. There cannot be a truly Free Press if every single citizen's 
Right to Free Speech is not ardently protected, even when it relates 
to the actions of the Judiciary. The prospect of having to undergo a 
lengthy and exorbitant process of litigation, and the threat of an 
eventual prison sentence, will effectively restrain the Press from 
writing about or analysing the actions of the Judiciary. It will 
render the Judiciary accountable to no-one but itself. As I have said 
in my affidavit dated 16.4.2001, if the judiciary removes itself from 
public scrutiny and accountability, and severs its links with the 
society that it was set up to serve in the first place, it will mean 
that yet another pillar of Indian democracy will eventually crumble.

23. In conclusion, may I take the liberty of saying that the process 
of this trial and all that it entails, is as much, if not more of a 
punishment than the sentence itself. If the Court sentences a writer 
to a short spell in prison for the alleged 'crime' of stating a 
reasonable and honest impression, her mind can float through the bars 
to freedom. But yoke her to this 'cause' for long enough - these 
endless meetings with lawyers, this drafting and re-drafting of 
affidavits, enforced Court appearances that make her feel like a 
criminal, this fearful study of law books before writing a single 
line, the apprehension that each new piece of writing will invite 
more litigation -  and perhaps a writer will gradually lose the 
ability, the spontaneity, and perhaps even the will to write at all.

In my case, I realise that this will come as a relief to many and few 
will mourn the loss. However, I will mourn the loss of my writing 
self.

DEPONENT

VERIFICATION:   I the deponent abovenamed do hereby verify that the 
contents of the above affidavit are true to my knowledge and nothing 
material has been concealed therefrom. Verified at New Delhi on this 
the 16th Day of October 15, 2001.

 
DEPONENT




At 11:04 AM -0600 3/7/02, Dan Sheetz wrote:
>Shuddhabrata,
>
>Can we see the text of the affidavit?  Is it publicly available?  This
>maneuver by the Indian Supreme Court seems highly suspect, but it would help
>if we could read what Roy wrote that sparked elicited such a strong
>reaction.
>
>Thanks,
>Dan Sheetz
>
>
>>  From: Shuddhabrata Sengupta <shuddha@sarai.net>
>>  Reply-To: Shuddhabrata Sengupta <shuddha@sarai.net>
>>  Date: Wed, 6 Mar 2002 16:25:48 +0530
>>  To: nettime-l@bbs.thing.net
>>  Subject: <nettime> Arundhati Roy sent to prison today
>>
>>  Dear All,
>>
>>  (apologies for cross posting to those on both Nettime and the Reader List)
>>
>>  Contempt and Magnanimity - Preliminary Observations on the Conviction of
>>  Arundhati Roy
>  <...>
>
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>#  collaborative text filtering and cultural politics of the nets
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